Pre-Effective Amendment to Registration Statement for Securities of a Real Estate Company — Form S-11
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-11/A Pre-Effective Amendment to Registration Statement HTML 1.20M
for Securities of a Real Estate Company
2: EX-1.1 Underwriting Agreement 35 113K
3: EX-3.1 Articles of Incorporation/Organization or By-Laws HTML 188K
4: EX-4.1 Instrument Defining the Rights of Security Holders 233 781K
5: EX-4.2 Instrument Defining the Rights of Security Holders 8 22K
6: EX-4.4 Instrument Defining the Rights of Security Holders 44 155K
7: EX-4.5 Instrument Defining the Rights of Security Holders 133 487K
8: EX-5.1 Opinion re: Legality 3 16K
9: EX-8.2 Opinion re: Tax Matters 2 11K
10: EX-10.1 Material Contract HTML 105K
11: EX-10.2 Material Contract HTML 563K
12: EX-10.3 Material Contract 17 65K
13: EX-10.4 Material Contract 17 66K
14: EX-10.5 Material Contract 23 78K
15: EX-25.1 Statement re: Eligibility of Trustee HTML 40K
16: EX-99.1 Miscellaneous Exhibit 2 11K
Exhibit 1.1
AUSTRALIAN SECURITISATION MANAGEMENT PTY LIMITED
ARMS II GLOBAL FUND 3
US$[____________] Class A-1(a) Mortgage Backed Floating Rate Bonds
EURO [____________] Class A-1(b) Mortgage Backed Floating Rate Bonds
US$[____________] Class B-1(a) Mortgage Backed Floating Rate Bonds
EURO [___________] Class B-1(b) Mortgage Backed Floating Rate Bonds
UNDERWRITING AGREEMENT
January [__], 2004
Deutsche Bank Securities Inc.
As Representative of the Several Underwriters,
60 Wall Street
New York, New York 10005
Ladies and Gentlemen:
1. INTRODUCTORY. Permanent Custodians Limited (ACN 001 426 384), a limited
liability public company under the Corporations Act 2001 (Commonwealth of
Australia) in its capacity as trustee of ARMS II Global Fund 3 (the "ISSUER
TRUSTEE") at the direction of Australian Securitisation Management Pty Limited
(ABN 32 103 852 428), as manager (the "TRUST MANAGER") of ARMS II Global Fund 3
(the "TRUST") proposes to sell to the several Underwriters listed in Schedule I
hereto (the "UNDERWRITERS"), for whom you are acting as representative (the
"REPRESENTATIVE"), US$[______] principal amount of Class A-1(a) Mortgage Backed
Floating Rate Bonds (the "CLASS A-1(a) BONDS") and EURO [_____] principal amount
of Class A-1(b) Mortgage Backed Floating Rate Bonds (the "CLASS A-1(b) BONDS"
and, together with the Class A-1(a) Bonds, the "CLASS A BONDS") and US$[_______]
principal amount of Class B-1(a) Mortgage Backed Floating Rate Bonds (the "CLASS
B-1(a) BONDS") and EURO [_____] principal amount of Class B-1(b) Mortgage Backed
Floating Rate Bonds (the "CLASS B-1(b) BONDS" and, together with the Class
B-1(a) Bonds, the "CLASS B BONDS") issued by the Trust. The Class A Bonds and
Class B Bonds are together referred to herein as the "OFFSHORE BONDS." Each
Offshore Bond will be secured by the assets of the Trust. The assets of the
Trust include, among other things, a pool of variable and fixed rate residential
housing loans (the "HOUSING LOANS") originated by Australian Mortgage Securities
Ltd (ABN 89 003 072 446) ("AMS") including all monies at any time paid or
payable thereon or in respect thereof from and after the Closing Date (as
defined herein) with respect to payments of principal and interest, rights under
certain insurance policies with respect to the Housing Loans, amounts on deposit
in the accounts established in connection with the creation of the Trust and the
issuance of the Bonds (as defined herein) and the rights of the Issuer Trustee
under the Basic Documents. The Trust will be created pursuant to the Master
Trust Deed, dated March 7, 1995, between the Issuer Trustee and AMS, as amended
and
restated from time to time (the "MASTER TRUST DEED") and a fund creation
notice, dated December 4, 2003 given by the Trust Manager to the Issuer Trustee
(the "FUND CREATION NOTICE") which sets forth specific provisions regarding the
Trust. The Bond Trust Deed, to be dated on or about January [____], 2004 (the
"BOND TRUST DEED") by and among the Issuer Trustee, the Trust Manager, the
Servicer (as defined below), Permanent Registry Limited (the "SECURITY TRUSTEE")
and The Bank of New York, a New York banking corporation (the "BOND TRUSTEE")
provides for the issuance and registration of the Offshore Bonds in accordance
with the terms and conditions attached thereto (the "CONDITIONS"). AMS will act
as servicer (the "SERVICER") of the Housing Loans. The Trust Manager and AMS are
each an "AMS PARTY" and collectively are referred to herein as the "AMS
PARTIES."
The Class A-1(a) Bonds will be issued in an aggregate principal amount of
US$[________]. The Class A-1(b) Bonds will be issued in an aggregate principal
amount of EURO [________]. The Class B-1(a) Bonds will be issued in an aggregate
principal amount of US$[______]. The Class B-1(b) Bonds will be issued in an
aggregate principal amount of EURO [________]. Any Fast Prepayment Bonds that
may be issued after the date of this Agreement are referred to as the "A$
SECURITIES." The Offshore Bonds and the A$ Securities are collectively referred
to as the "BONDS."
The Trust Manager has prepared and filed with the Securities and Exchange
Commission (the "COMMISSION") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "SECURITIES ACT"), a registration
statement, including a prospectus, relating to the Offshore Bonds.
When used in this Agreement, "BASIC DOCUMENTS" shall mean each of the
Master Trust Deed, the Fund Creation Notice, the Conditions, the Master
Origination and Servicing Agreement, the Bonds, the Security Trust Deed, the
Bond Trust Deed, the Interest Rate Swaps, the Currency Swaps, and the Paying
Agency Agreement. To the extent not defined herein, capitalized terms used
herein have the meanings assigned to such terms in the Bond Trust Deed.
In this Agreement, a reference to the Issuer Trustee is a reference to the
Issuer Trustee in its capacity as trustee of the Trust only, and in no other
capacity. Any reference to the assets, business, property or undertaking of the
Issuer Trustee is a reference to the Issuer Trustee in that capacity only.
The AMS Parties and the Issuer Trustee hereby agree with the several
Underwriters named on Schedule I as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE ISSUER TRUSTEE AND THE AMS PARTIES.
I. The Issuer Trustee represents and warrants to each Underwriter as of the date
of this Agreement and as of the Closing Date, and agrees with each Underwriter
that:
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(a) There has been no material adverse change or any development involving
a prospective material adverse change in the condition (financial or
otherwise) of the Issuer Trustee or the Trust, except as disclosed in the
Prospectus, which is material in the context of the Issuer Trustee
performing its obligations and duties under the Bonds and each Basic
Document to which it is or is to be a party.
(b) The Issuer Trustee is a corporation duly incorporated and existing
under the Corporations Act 2001 (Commonwealth of Australia) as in effect on
the date of this agreement; it is duly qualified and holds all licenses,
permits, certificates, consents, orders, approvals and other authorizations
necessary to carry on its business as described in the Prospectus and to
issue the Bonds and to act as required by each Basic Document to which it
is or is to be a party and by law to comply with any requirements which
affect the operations or business of the Trust or the Issuer Trustee's
obligations under the Basic Documents to which it is a party.
(c) This Agreement has been duly authorized, executed and delivered by the
Issuer Trustee.
(d) The Bonds have been duly authorized and, when issued, delivered and
paid for pursuant to this Agreement, will have been duly executed, issued
and delivered and will constitute valid and binding obligations of the
Issuer Trustee, entitled to the benefits provided by the Bond Trust Deed
and the Security Trust Deed, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of creditors'
rights generally and to general equitable principles. Each of the Basic
Documents to which the Issuer Trustee is a party have been duly authorized
by the Issuer Trustee, and, when executed and delivered by the Issuer
Trustee and each of the other parties thereto (assuming valid execution by
each of those parties), will constitute a legal, valid and binding
obligation of the Issuer Trustee, enforceable against the Issuer Trustee in
accordance with its terms, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of creditors'
rights generally and to general equitable principles.
(e) The Issuer Trustee is not, nor with the giving of notice or lapse of
time or both would be, in violation of or in default under, (i) its
Constitution or (ii) any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Issuer Trustee is a party or
by which it or any of its properties is bound, except for violations and
defaults which individually and in the aggregate would not have a material
adverse effect on the transactions contemplated herein or in the Basic
Documents; the issue and sale of the Bonds and the performance by the
Issuer Trustee of all of the provisions of its obligations under the Bonds,
the Basic Documents and this Agreement and the consummation of the
transactions herein and therein contemplated will not
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conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any agreement or instrument to which the
Issuer Trustee is a party or by which the Issuer Trustee is bound or to
which any of the property or assets of the Trust is subject, nor will any
such action result in any violation of the provisions of the Constitution
of the Issuer Trustee or any applicable law or statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Issuer Trustee, or any of its properties; and no
consent, approval, authorization, order, license, registration (other than
the registration of the Security Trust Deed) or qualification of or with
any such court or governmental agency or body is required for the issue and
sale of the Bonds or the consummation by the Issuer Trustee of the
transactions contemplated by this Agreement or the Basic Documents, except
such consents, approvals, authorizations, orders, licenses, registrations
or qualifications as have been obtained under the Securities Act and the
Trust Indenture Act of 1939, as amended, and the rules and regulations of
the Commission thereunder (the latter, including such applicable rules and
regulations, the "TRUST INDENTURE ACT") and as may be required under state
securities or "Blue Sky" laws in connection with the purchase and
distribution of the Bonds by the Underwriters.
(f) Other than as set forth or contemplated in the Prospectus, there are no
legal or governmental investigations, actions, suits or proceedings pending
or, to the actual knowledge of the Issuer Trustee, threatened against or
affecting the Issuer Trustee or the Trust, or to which the Issuer Trustee
is a party or to which the Issuer Trustee or any property of the Trust is
the subject, that will have an impact on the transactions contemplated by
this Agreement.
(g) The representations and warranties of the Issuer Trustee contained in
the Basic Documents are true and correct in all material respects.
(h) To the Issuer Trustee's actual knowledge, no event has occurred that
would entitle the Trust Manager to direct the Issuer Trustee to retire as
trustee of the Trust under Section 17 of the Master Trust Deed.
(i) The Issuer Trustee has not taken any corporate action nor (to the best
of its knowledge and belief, having made reasonable inquiry and
investigation) have any other steps been taken or legal proceedings been
started or threatened against the Issuer Trustee for its winding-up,
dissolution or reorganization or for the appointment of a receiver,
receiver and manager, administrator, provisional liquidator or similar
officer of it or of any or all of its assets.
(j) The Bonds and the obligations of the Issuer Trustee under the Bond
Trust Deed will be secured (pursuant to the Security Trust Deed) by a first
floating charge over the assets of the Trust, subject to the terms of the
Security Trust Deed.
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(k) No event has occurred or circumstances arisen which, had the Bonds
already been issued, would (whether or not with the giving of notice and/or
the passage of time and/or the fulfillment of any other requirement)
constitute an Event of Default.
II. The AMS Parties, jointly and severally, represent and warrant to each
Underwriter and the Issuer Trustee as of the date of this Agreement and as of
the Closing Date that:
(a) The Trust Manager has filed a registration statement on Form S-11 (No.
333-110126), including a form of preliminary prospectus, for registration
of the Offshore Bonds under the Securities Act and has filed such
amendments thereto and will file such additional amendments thereto and
such amended prospectuses as may hereafter be required. Such registration
statement in the form in which it first became effective and as amended or
supplemented thereafter (if applicable) and the prospectus constituting a
part thereof (including all information deemed to be a part thereof
pursuant to Rule 430A(b) of the rules and regulations of the Commission
under the Securities Act) as amended or supplemented thereafter (if
applicable) under the Securities Act are herein referred to as the
"REGISTRATION STATEMENT" and the "PROSPECTUS", respectively, except that if
any revised prospectus shall be provided to you for use in connection with
the offering of the Offshore Bonds which differs from the Prospectus on
file with the Commission at the time the Registration Statement becomes
effective (whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b)), the term "PROSPECTUS" shall refer to such revised
prospectus from and after the time it is first provided to you for such
use.
(b) The Registration Statement has been declared effective under the
Securities Act by the Commission. No stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Trust Manager, threatened by the Commission. The Registration Statement and
Prospectus (as amended or supplemented if the Trust Manager shall have
furnished any amendments or supplements thereto) comply, or will comply, as
the case may be, in all material respects with the Securities Act and the
rules and regulations of the Commission thereunder and the Trust Indenture
Act and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the date of the
Prospectus and any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and the Prospectus, as amended or supplemented, if applicable,
at the Closing Date will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; except that the foregoing representations and warranties shall
not apply to (i) that part of the Registration Statement which constitutes
the Statement of Eligibility and Qualification (Form T-1) of the Bond
Trustee under the Trust Indenture Act,
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and (ii) statements in or omissions from the Registration Statement or the
Prospectus based upon written information furnished to the Trust Manager by
any Underwriter through the Representative specifically for use therein, it
being understood and agreed that the only such information is that
described as such in Section 7(b) hereof.
(c) Except as described in the Prospectus, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has been no material adverse change, nor any development
involving a prospective material adverse change, in the condition
(financial or other), business, properties, stockholders' equity or results
of operations of any AMS Party taken as a whole.
(d) Each AMS Party is a corporation duly incorporated and validly existing
under the Corporations Act 2001 (Commonwealth of Australia) as in effect at
the date of this agreement; each AMS Party has the power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus and to enter into and perform its obligations
under this Agreement and the Basic Documents to which it is a party and
carry out the transactions contemplated by such Basic Documents; each AMS
Party has been duly qualified or licensed for the transaction of business
and is in good standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so as to require
such qualification or licensing, other than where the failure to be so
qualified or licensed or in good standing would not have a material adverse
effect on the transactions contemplated herein or in the Basic Documents.
(e) This Agreement has been duly authorized, executed and delivered by each
of the AMS Parties.
(f) The Basic Documents to which any AMS party is a party have been duly
authorized by the applicable AMS Party, and upon effectiveness of the
Registration Statement, the Bond Trust Deed will have been duly qualified
under the Trust Indenture Act and, when executed and delivered by each AMS
Party which is a party thereto and each of the other parties thereto, each
of the Basic Documents to which any AMS Party is a party will constitute a
legal, valid and binding obligation of each such AMS Party, enforceable
against each such AMS Party in accordance with its terms, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar laws affecting
the enforcement of creditors' rights generally and to general equitable
principles; and the Bonds and the Basic Documents each will conform to the
descriptions thereof in the Prospectus.
(g) Neither AMS Party is, nor with the giving of notice, or lapse of time
or both would be, in violation of or in default under, (i) its Constitution
or (ii) any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it or any of its
properties is bound,
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except for violations and defaults which individually and in the aggregate
would not have a material adverse effect on the transactions contemplated
herein or in the Basic Documents; the issue and sale of the Bonds and the
performance by each AMS Party of all of the provisions of its obligations
under the Bonds, the Basic Documents and this Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which either AMS Party is a
party or by which either AMS Party is bound or to which any of the property
or assets of either AMS Party is subject, nor will any such action result
in any violation of the provisions of the Constitution of either AMS Party
or any applicable law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over either AMS
Party, or any of its properties; and no consent, approval, authorization,
order, license, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Bonds
or the consummation by either AMS Party of the transactions contemplated by
this Agreement or the Basic Documents, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as have
been obtained under the Securities Act, the Trust Indenture Act and as may
be required under state securities or "Blue Sky" laws in connection with
the purchase and distribution of the Offshore Bonds by the Underwriters.
(h) Except as disclosed in the Prospectus, there are no legal or
governmental investigations, actions, suits or proceedings pending or, to
the knowledge of either AMS Party, threatened against or affecting either
AMS Party or its properties or to which either AMS Party is or may be a
party or to which either AMS Party or any property of either AMS Party is
or may be the subject, in each case, that will have an impact on the
transactions contemplated by this Agreement; and there are no statutes,
regulations, contracts or other documents that are required to be filed as
an exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or described
as required.
(i) The representations and warranties of each AMS Party contained in the
Basic Documents are true and correct in all material respects.
(j) KPMG are independent public accountants with respect to each AMS Party
within the meaning of the standards established by the American Institute
of Certified Public Accountants.
(k) Each AMS Party owns, possesses or has obtained all licenses, permits,
certificates, consents, orders, approvals and other authorizations from,
and has made all declarations and filings with, all federal, state, local
and other governmental authorities (including foreign regulatory agencies),
all self-regulatory organizations and all courts and other tribunals,
domestic or foreign,
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necessary to perform its obligations under this Agreement and the Basic
Documents, and neither AMS Party has received any actual notice of any
proceeding relating to revocation or modification of any such
Authorisation, license, permit, certificate, consent, order, approval or
other authorization; and each AMS Party is in compliance with all laws and
regulations necessary for the performance of its obligations under this
Agreement and the Basic Documents.
(l) To the knowledge of any AMS Party, no event has occurred that would
entitle either AMS Party to direct the Issuer Trustee to retire as trustee
of the Trust under clause 17 of the Master Trust Deed.
(m) Neither AMS Party has taken any corporate action nor (to the best of
its knowledge and belief) have any other steps been taken or legal
proceedings been started or threatened against either AMS Party for its
winding-up, dissolution or reorganization or for the appointment of a
receiver, receiver and manager, administrator, provisional liquidator or
similar officer of it or of any or all of its assets.
(n) Subject to compliance with Section 128F of the Tax Act, and compliance
by the Underwriters with Section 10(b) and 10(c) hereto, no stamp or other
duty is assessable or payable in, and no withholding or deduction for any
taxes, duties, assessments or governmental charges of whatever nature is
imposed or made for or on account of any income, registration, transfer or
turnover taxes, customs or other duties or taxes of any kind, levied,
collected, withheld or assessed by or within, the Commonwealth of Australia
or any sub-division of or authority therein or thereof having power to tax
in such jurisdiction, in connection with the authorization, execution or
delivery of the agreements to which it is to be a party or with the
authorization, execution, issue, sale or delivery of the Offshore Bonds and
the performance of either AMS Parties' or the Issuer Trustee's obligations
under the Basic Documents, other than, in the case of stamp duty, on the
execution of a written transfer of Bonds in the Northern Territory.
(o) No event has occurred or circumstances arisen that, had the Bonds
already been issued, would (whether or not with the giving of notice and/or
the passage of time and/or the fulfillment of any other requirement)
constitute a Manager's Default (as defined in the Master Trust Deed).
(p) Since January [__], 2004, there has been no material adverse change or
any development involving a prospective material adverse change in the
condition (financial or otherwise) of either of the AMS Parties.
(q) As of the Closing Date, the Issuer Trustee will hold each Housing Loan
that is the subject of the Issue Notice given by the Trust Manager to the
Issuer Trustee on or about the date of this agreement as the trustee of the
Trust.
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(r) The Trust is not and (i) upon the issuance and sale of the Bonds as
contemplated in this Agreement, (ii) the application of the net proceeds
therefrom as described in the Prospectus, (iii) the performance by the
parties to the Basic Documents of their respective obligations under the
Basic Documents, and (iv) the consummation of the transactions contemplated
by the Basic Documents, the Trust will not be required to be registered as
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
3. PURCHASE, SALE AND DELIVERY OF OFFSHORE BONDS. On the basis of the
representations, warranties and agreements contained herein, but subject to the
terms and conditions herein set forth, the Issuer Trustee, at the direction of
the Trust Manager, agrees to sell the Offshore Bonds to the Underwriters, and
the Underwriters agree, severally and not jointly, to purchase from the Issuer
Trustee at a purchase price of 100% of the principal amount of the Offshore
Bonds (which amount shall be exclusive of the commissions payable to the
Underwriters by AMS) the respective principal amount of the Offshore Bonds set
forth opposite the names of the Underwriters in Schedule I hereto.
The Issuer Trustee will deliver against payment of the purchase price the
Class A Bonds and Class B Bonds in the form of one or more permanent Class A
Global Bonds and Class B Global Bonds, respectively, in definitive form (the
"GLOBAL BONDS").
The Class A-1(a) Global Bonds and the Class B-1(a) Global Bonds shall be
deposited with the Bond Trustee as custodian for The Depository Trust Company
(the "DTC") and registered in the name of Cede & Co., as nominee for DTC.
Interests in any permanent Class A-1(a) Global Bonds or Class B-1(a) Global
Bonds will be held only in book-entry form through DTC, except in the limited
circumstances described in the Prospectus. Payment for the Class A-1(a) Bonds
and Class B-1(a) Bonds shall be made by the Underwriters in
immediately-available funds by official bank check or checks or wire transfer to
an account at a bank acceptable to the Representative drawn to the order of the
Currency Swap Provider at the office of Mayer, Brown, Rowe & Maw LLP, 1675
Broadway, New York, New York 10019 not later than 10:00 A.M., New York City
time, on January [29], 2004, or at such other time not later than seven full
business days thereafter as the Representative and the Trust Manager determine,
such time being herein referred to as the "CLOSING DATE," against delivery to
the Bond Trustee as custodian for DTC of the Class A-1(a) Global Bonds and Class
B-1(a) Global Bonds representing all of the Class A-1(a) Bonds and Class B-1(a)
Bonds. The Class A-1(a) Global Bonds and Class B-1(a) Global Bonds will be made
available for checking at the above office at least 24 hours prior to the
Closing Date.
The Class A-1(b) Global Bonds and Class B-1(b) Global Bonds shall be
deposited with the Bond Trustee as common depository for the Euroclear Bank
S.A./N.V. as operator of the Euroclear System ("EUROCLEAR") and Clearstream
Banking, societe anonyme ("CLEARSTREAM, LUXEMBOURG") and registered in the name
of The Bank of New York Depository (Nominees) Limited, as nominee for Euroclear
and Clearstream, Luxembourg. Interests in any permanent Class A-1(b) Global
Bonds or Class B-1(b) Global Bonds will be held only in book-entry form through
Euroclear and Clearstream,
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Luxembourg, except in the limited circumstances described in the Prospectus.
Payment for the Class A-1(b) Bonds and Class B-1(b) Bonds shall be made by the
Underwriters in immediately-available funds by official bank check or checks or
wire transfer to an account at a bank acceptable to the Representative drawn to
the order of the Currency Swap Provider at the office of Mayer, Brown, Rowe &
Maw LLP, 1675 Broadway, New York, New York 10019 not later than 10:00 A.M., New
York City time, on the Closing Date, against delivery to the Bond Trustee as
common depository for Euroclear and Clearstream, Luxembourg of the Class A-1(b)
Global Bonds and Class B-1(b) Global Bonds representing all of the Class A-1(b)
Bonds and Class B-1(b) Bonds. The Class A-1(b) Global Bonds and Class B-1(b)
Global Bonds will be made available for checking at the above office at least 24
hours prior to the Closing Date.
AMS shall pay US$[_______] and EURO[____________] (the "COMMISSION") to the
Underwriters on the Closing Date in immediately-available funds by official bank
check or checks or wire transfer to a bank account or accounts directed by the
Representative.
4. OFFERING BY UNDERWRITERS. The AMS Parties and the Issuer Trustee understand
that the several Underwriters propose to offer the Offshore Bonds for sale to
the public as set forth in the Prospectus.
5. CERTAIN AGREEMENTS OF THE AMS PARTIES AND THE ISSUER TRUSTEE.
I. The AMS Parties, jointly and severally, covenant and agree with each of the
several Underwriters as follows:
(a) The Trust Manager will file with the Commission pursuant to and in
accordance with Rule 430A and subparagraph (4) of Rule 424(b) copies of an
amended Prospectus containing all of the information omitted from the
Prospectus in reliance upon Rule 430A at the time the Registration
Statement became effective. The Trust Manager will advise the
Representative promptly of any such filing pursuant to Rule 424(b).
(b) The Trust Manager will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement as filed or the
related Prospectus and will not amend or supplement the Registration
Statement or the Prospectus without the Representative's consent; and the
Trust Manager will also advise the Representative promptly of the
institution by the Commission of any stop order proceedings in respect of
the Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Offshore Bonds is
required to be delivered under the Securities Act in connection with sales
by any Underwriter or dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the
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circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Securities
Act, the Trust Manager will promptly notify the Representative of such
event and will promptly prepare and file with the Commission, at its own
expense, an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither the
Representative's consent to, nor the Underwriters' delivery of, any such
amendment or supplement will constitute a waiver of any of the conditions
set forth in Section 6.
(d) As soon as practicable, the Trust Manager will make generally available
to its securityholders an earnings statement covering a period of at least
12 months beginning after the effective date of the Registration Statement
that satisfies the provisions of Section 11(a) of the Securities Act.
(e) The Trust Manager will furnish to the Representative copies of each
Registration Statement (three of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offshore Bonds is required to be delivered under
the Securities Act in connection with sales by any Underwriter or dealer,
the Prospectus and all amendments and supplements to such documents, in
each case in such reasonable quantities as the Representative requests. The
Prospectus will be so furnished on or prior to 3:00 P.M., New York time, on
the business day following the later of the execution and delivery of this
Agreement or the effective time of the Registration Statement. All other
documents will be so furnished as soon as available. The Trust Manager will
pay the expenses of printing and distributing to the Underwriters all such
documents.
(f) The Trust Manager will arrange for the qualification of the Offshore
Bonds for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as the Representative designates and
will continue such qualifications in effect so long as required for the
distribution. The Trust Manager, on behalf of the Issuer Trustee, will
assist the Representative in applying to the Irish Stock Exchange for each
class of Offshore Bonds to be admitted to the Daily Official List.
(g) So long as the Offshore Bonds are outstanding, the Trust Manager will
furnish to the Representative (i) copies of each certificate, the annual
statements of compliance and the annual independent certified public
accountant's audit report on the financial statements furnished to the
Issuer Trustee or the Bond Trustee pursuant to the Basic Documents by first
class mail as soon as practicable after such statements and reports are
furnished to the Issuer Trustee or the Bond Trustee, (ii) copies of each
amendment to any of the Basic Documents, (iii) on each Determination Date
or as soon thereafter as practicable, the bond factor (a factor equal to
the outstanding principal amount of the Offshore Bonds divided by the
original principal amount of the Offshore Bonds, expressed as a percentage)
as of the related Record Date shall be available to the Representative on
11
Bloomberg and Reuters, (iv) copies of all reports or other communications
(financial or other) furnished to holders of the Offshore Bonds, and copies
of any reports and financial statements furnished to or filed with the
Commission, any governmental or regulatory authority or any national
securities exchange, and (v) from time to time such other information
concerning the Trust or the Trust Manager as the Representative may
reasonably request.
(h) To the extent, if any, that the ratings provided with respect to the
Offshore Bonds by the Rating Agencies are conditional upon the furnishing
of documents or the taking of any other action by the Trust Manager, the
Trust Manager will use its best efforts to furnish such documents and take
any other such action.
(i) The Trust Manager will assist the Representative in making arrangements
with DTC, Euroclear and Clearstream, Luxembourg concerning the issue of the
Offshore Bonds and related matters.
(j) The Trust Manager will not take, or cause to be taken, any action and
will not knowingly permit any action to be taken that it knows or has
reason to believe would result in the Offshore Bonds not being assigned the
ratings referred to in Section 6(n) below.
(k) AMS will pay all expenses incident to the performance of the AMS
Parties' obligations under this Agreement, for any filing fees and other
expenses (including fees and disbursements of underwriters' counsel and
issuers' counsel) incurred in connection with qualification of the Offshore
Bonds for sale under the laws of such jurisdictions as the Representative
designates and the printing of memoranda relating thereto, for any costs
incurred in connection with the application to the Irish Stock Exchange to
list each class of Offshore Bonds on the Daily Official List, for any fees
charged by the independent accountants, for any fees charged by the rating
agencies for the rating of the Offshore Bonds, for any travel expenses of
any of the AMS Parties' officers and employees and any other expenses of
either AMS Party in connection with attending or hosting meetings with
prospective purchasers of the Offshore Bonds and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Underwriters.
(l) AMS will indemnify and hold harmless the Underwriters against any
documentary, stamp or similar issue tax, including any interest and
penalties, on the creation, issue and sale of the Offshore Bonds (other
than on the transfer of any Offshore Bonds from the Underwriter) and on the
execution and delivery of this Agreement. All payments to be made by the
Issuer Trustee and the AMS Parties hereunder shall be made without
withholding or deduction for or on account of any present or future taxes,
duties or governmental charges whatsoever unless the Trust Manager is
compelled by law to deduct or withhold such taxes, duties or charges. In
that event, the Trust Manager shall pay such additional amounts as may be
necessary in order that the net amounts received after such
12
withholding or deduction shall equal the amounts that would have been
received if no withholding or deduction had been made.
(m) Neither AMS Party will offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission a
registration statement under the Securities Act relating to asset-backed
securities, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent of
the Representative for a period beginning at the date of this Agreement and
ending at the later of the Closing Date or the lifting of trading
restrictions by the Representative.
II. The Issuer Trustee covenants and agrees with each of the several
Underwriters as follows:
(a) The Issuer Trustee will use the net proceeds received by the Issuer
Trustee from the sale of the Offshore Bonds pursuant to this Agreement in
the manner specified in the Prospectus under the caption "Use of Proceeds".
(b) The Issuer Trustee will pay any stamp duty or other issue, transaction,
value added or similar tax, fee or duty (including court fees) in relation
to the execution of, or any transaction carried out pursuant to, the Basic
Documents or in connection with the issue and distribution of the Offshore
Bonds or the enforcement or delivery of this Agreement.
(c) The Issuer Trustee will use all reasonable efforts to procure
satisfaction on or before the Closing Date of the conditions referred to in
Section 6(i) and Section 6(p) below and (i) the Issuer Trustee shall
execute those of the Basic Documents required to be executed by the Issuer
Trustee not executed on the date hereof on or before the Closing Date, and
(ii) the Issuer Trustee will assist the Representative to make arrangements
with DTC, Euroclear and Clearstream, Luxembourg concerning the issue of the
Offshore Bonds and related matters.
(d) The Issuer Trustee will assure that the charges created by or contained
in the Security Trust Deed are registered within all applicable time limits
in all appropriate registers.
(e) The Issuer Trustee will perform all its obligations under, and subject
to, each of the Basic Documents to which it is a party that are required to
be performed prior to or simultaneously with closing on the Closing Date.
(f) The Issuer Trustee will not take, or cause to be taken, any action and
will not knowingly permit any action to be taken which it knows or has
reason to believe would result in the Class A Bonds or the Class B Bonds
not being assigned the respective ratings referred to in Section 6(n)
below.
13
(g) The Issuer Trustee will not prior to or on the Closing Date amend the
terms of any Basic Document to which it is a party nor execute any of the
Basic Documents to which it is a party other than in the agreed form
without the consent of the Representative.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of the
several Underwriters to purchase and pay for the Offshore Bonds on the Closing
Date will be subject to the accuracy of the representations and warranties of
the AMS Parties and the Issuer Trustee made herein, to the accuracy of the
statements of officers of the AMS Parties and the Issuer Trustee made pursuant
to the provisions hereof, to the performance of the AMS Parties and the Issuer
Trustee of their obligations hereunder and to the following additional
conditions precedent:
(a) The Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities Act,
such post-effective amendment shall have become effective, not later than
5:00 P.M., New York City time, on the date hereof or on such later date to
which the Representative has consented; and no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
shall be in effect, and no proceedings for such purpose shall be pending
before or threatened by the Commission. The Prospectus, including all
price-related information previously omitted from the prospectus which
formed a part of the Registration Statement at the time it became
effective, in accordance with Rule 430A, shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations under the
Securities Act and in accordance with Section 5.I.(a) hereof; and prior to
the Closing Date the Trust Manager shall have provided evidence
satisfactory to the Representative of such timely filing, and all requests
for additional information shall have been complied with to the
satisfaction of the Representative.
(b) Subsequent to the execution and delivery of this Agreement, there shall
not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business,
properties or results of operations of any of the AMS Parties, the Issuer
Trustee, the Interest Rate Swaps Counterparty or the Currency Swap
Counterparty and their respective subsidiaries, in each case, taken as one
enterprise, which, in the judgment of a majority in interest of the
Underwriters including the Representative, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offshore Bonds; (ii) any
downgrading in the rating of any debt securities of any of the Trust
Manager, AMS, the Issuer Trustee, the Interest Rate Swaps Counterparty or
the Currency Swap Counterparty by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Securities Act), or any public announcement that any such organization has
under surveillance or review its rating of the Bonds or any debt securities
of any of the Trust Manager, AMS, the Issuer Trustee, the Interest Rate
Swaps Counterparty or the Currency Swap
14
Counterparty (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any material suspension or material limitation of trading in
securities generally on the Irish Stock Exchange or any other exchange on
which the Offshore Bonds are listed, or any setting of minimum prices for
trading on such exchange, or any suspension of trading of any securities of
any of the Trust Manager, AMS, the Issuer Trustee, any Interest Rate Swap
Counterparty or the Currency Swap Counterparty on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S.
Federal, New York, London, England or Australian authorities; or (v) any
outbreak or escalation of major hostilities in which the United States,
England or Australia is involved, any declaration of war by Congress or any
other substantial national or international calamity or emergency if, in
the judgment of a majority in interest of the Underwriters including the
Representative, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offshore Bonds.
(c) The Representative shall have received a certificate, dated such
Closing Date, of the managing director, director or any chief general
manager of each AMS Party and (as to paragraphs (i) and (ii) below only) of
an authorized officer of the Issuer Trustee in which such officers, to the
best of their knowledge after reasonable investigation, shall state that:
(i) the representations and warranties of such entity in this Agreement are
true and correct; (ii) such entity has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to such Closing Date; (iii) in the case of the Trust Manager,
no stop order suspending the effectiveness of any Registration Statement
has been issued and no proceedings for that purpose have been instituted or
are contemplated by the Commission; and (iv) subsequent to the date of the
most recent financial statements supplied by the AMS Parties to the
Underwriters or the Representative on behalf of the Underwriters, there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of such entity and its
subsidiaries taken as a whole except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(d) Allens Arthur Robinson, Australian counsel for AMS, the Trust Manager
and the Servicer, shall have furnished to the Representative their written
opinion, dated the Closing Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters.
(e) Allens Arthur Robinson, Australian tax counsel for AMS, the Trust
Manager and the Servicer, shall have furnished to the Representative their
written opinion, dated the Closing Date, in form and substance satisfactory
to the Representative,
15
and such counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters.
(f) The Representative shall have received two letters, one dated the date
of the preliminary prospectus and one dated the date hereof, of KPMG
confirming that they are independent public accountants within the
standards established by the American Institute of Certified Public
Accountants and stating to the effect that they have compared specified
dollar amounts (or percentages derived from such dollar amounts) and other
financial information contained in the Registration Statement (in each case
to the extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the AMS
Parties and their subsidiaries subject to the internal controls of such
parties' accounting system or are derived directly from such records by
analysis or computation or from the collateral tape containing the
description of the Housing Loans) with the results obtained from inquiries,
a reading of such general accounting records and collateral tape and other
procedures specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with such
results, except as otherwise specified in such letter.
(g) Mayer, Brown, Rowe & Maw LLP, United States counsel for the AMS Parties
and the Issuer Trustee, shall have furnished to the Representative their
written opinion, dated the Closing Date, in form and substance satisfactory
to the Representative, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters, to the effect that:
(1) The Bond Trust Deed has been duly qualified under the Trust
Indenture Act;
(2) To such counsel's knowledge, there are no material contracts,
indentures, or other documents of a character required to be described
or referred to under either the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto;
(3) The Trust is not and, after giving effect to the offering and sale
of the Bonds and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940;
(4) No consent, approval, authorization or order of, or filing with,
any governmental agency located in the United States or body or any
court located in the United States is required for the consummation of
the transactions contemplated by this Agreement in connection with the
16
issuance or sale of the Bonds by the Issuer Trustee, except such as
have been obtained and made under the Securities Act and the Trust
Indenture Act and such as may be required under state securities laws;
(5) The Registration Statement was filed and was declared effective
under the Securities Act as of the date and time specified in such
opinion, the Prospectus either was filed with the Commission pursuant
to subparagraph (4) of Rule 424(b) on the date specified therein, and,
to the best of the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement or any part thereof
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Securities Act,
and each Registration Statement and the Prospectus, and each amendment
or supplement thereto, as of their respective effective or issue
dates, complied as to form in all material respects with the
requirements of the Securities Act, the Trust Indenture Act and the
Rules and Regulations; such counsel have no reason to believe that any
part of the Registration Statement or any amendment thereto, as of its
effective date or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus or any amendment or
supplement thereto, as of its issue date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; the descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings are
accurate and fairly present the information required to be shown: it
being understood that such counsel need express no opinion as to the
financial statements, other financial data contained in the
Registration Statement or the Prospectus or the Statement of
Eligibility of the Bond Trustee on Form T-1 contained in the
Registration Statement;
(6) The statements in the Prospectus under the Captions "Description
of the Offshore Bonds" and "Description of the Transaction Documents",
insofar as they purport to summarize certain terms of the Bonds and
the applicable Basic Documents, constitute a fair summary of the
provisions purported to be summarized; and
(7) This Agreement represents a legal valid and binding obligation of
each of AMS, the Trust Manager and the Issuer Trustee, subject to
customary exceptions.
(h) Mayer, Brown, Rowe & Maw LLP, United States federal income tax counsel
for the AMS Parties and the Issuer Trustee, shall have furnished to the
17
Representative their written opinion, dated the Closing Date, in form and
substance satisfactory to the Representative.
(i) Mallesons Stephen Jaques, Australian counsel for the Issuer Trustee,
shall have furnished to the Representative their written opinion, dated the
Closing Date, in form and substance satisfactory to the Representative, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters.
(j) Emmet, Marvin & Martin, LLP, counsel for the Bond Trustee, shall have
furnished to the Representative their written opinion, dated the Closing
Date, in form and substance satisfactory to the Representative, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters.
(k) [Reserved].
(l) Sidley Austin Brown & Wood LLP, United States counsel to the
Underwriters, shall have furnished to the Representative their written
opinion, dated the Closing Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters.
(m) The Representative shall have received a letter or letters from each
counsel delivering any written opinion to any Rating Agency in connection
with the transaction described herein which is not otherwise described in
this Agreement allowing the Representative to rely on such opinion as if it
were addressed to the Representative.
(n) At the Closing Date, each of the Class A Bonds shall have been rated
"AAA" by Standard & Poor's (Australia) Pty Limited ("S&P") and "Aaa" by
Moody's Investors Service, Inc. ("MOODY'S" and together with S&P, the
"RATING AGENCIES"), and each of the Class B Bonds shall have been rated
"AA" by S&P and "Aa3" by Moody's, as evidenced by letters from the Rating
Agencies.
(o) The execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date.
(p) On or prior to the Closing Date the AMS Parties and the Issuer Trustee
shall have furnished to the Representative such further certificates and
documents as the Representative shall reasonably request.
(q) The Underwriters shall have received the Commission.
7. INDEMNIFICATION AND CONTRIBUTION.
18
(a) Each of AMS and the Trust Manager, jointly and severally, agrees to
indemnify and hold harmless each Underwriter and the Issuer Trustee, its
partners, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter or the Issuer Trustee may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained
in any Registration Statement or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading or (ii) any untrue statement or alleged untrue statement of any
material fact contained in the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter or the Issuer Trustee in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
neither AMS nor the Trust Manager will be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to AMS or the Trust Manager
by (i) any Underwriter through the Representative specifically for use
therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such
in subsection (b) below; (ii) ABN AMRO Bank N.V., for (A) information
included in the first bullet point under the third paragraph and in the
sixth full paragraph on pages [32-34] of the Prospectus under the heading
"The Servicer" and (B) information included in the second, third, fourth,
fifth and sixth paragraphs on page [89] of the Prospectus under the heading
"Description of the Offshore Bonds - Fixed-Floating Rate Swap Provider"; or
(iii) Deutsche Bank Aktiengesellschaft, for information included on pages
[89-90] of the Prospectus under the heading "Description of the Offshore
Bonds - Currency Swap Provider"; and provided, further, that with respect
to any untrue statement or alleged untrue statement in or omission or
alleged omission from any preliminary prospectus the indemnity agreement
contained in this paragraph (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages
or liabilities purchased the Offshore Bonds concerned, to the extent that a
prospectus relating to such Offshore Bonds was required to be delivered by
such Underwriter under the Securities Act in connection with such purchase
and any such loss, claim, damage or liability of such Underwriter results
from the fact that there was not sent or given to such person, at or prior
to the written confirmation of the sale of such Offshore Bonds to such
person, a copy of the Prospectus if the Trust Manager had previously
furnished copies thereof to such Underwriter at least three Business Days
prior to the written confirmation of the sale of the Offshore Bonds.
19
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless AMS, the Issuer Trustee and the Trust Manager, its partners, its
directors and officers and each person, if any, who controls such company
within the meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities to which such company may become subject,
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement or arise out of or
are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) any untrue statement or alleged
untrue statement of any material fact contained in the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Trust Manager by such Underwriter through the
Representative specifically for use therein, and will reimburse any legal
or other expenses reasonably incurred by AMS, the Issuer Trustee or the
Trust Manager in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by the
Underwriters consists of the following information in the Prospectus
furnished on behalf of the Underwriters by the Representative: under the
caption "Plan of Distribution", (i) the concession and reallowance figures
appearing in the table following the third paragraph and (ii) the seventh
paragraph.
(c) Promptly after receipt by an indemnified party under this Section
(c) of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of
the commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability that it may have to any
indemnified party otherwise than under subsection (a) or (b) above. In case
any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party
20
and indemnity could have been sought hereunder by such indemnified party
unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an
indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above
(i) in such proportion as is appropriate to reflect the relative benefits
received by the AMS Parties and the Issuer Trustee on the one hand and the
Underwriters on the other from the offering of the Offshore Bonds or (ii)
if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of the AMS Parties and the Issuer Trustee on the one hand and the
Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as
any other relevant equitable considerations. The relative benefits received
by the AMS Parties and the Issuer Trustee on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses)
received by the AMS Parties and the Issuer Trustee bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the AMS Parties and the Issuer Trustee or the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim that is the subject of this
subsection (d). In addition, nothing in this Section 7 shall require the
AMS Parties to indemnify and hold harmless ABN AMRO Bank N.V., Deutsche
Bank Aktiengesellschaft or any Underwriter from any losses, claims, damages
or liabilities arising out of or based on information contained in or
omitted from (A) the information included in the first bullet point under
the third paragraph and in the sixth full paragraph on pages [32-34] of the
Prospectus under the heading "The Servicer"; (B) the information included
in the second, third, fourth, fifth and sixth paragraphs on page [89] of
the Prospectus under the heading "Description of the Offshore Bonds -
Fixed-Floating Rate Swap Provider"; and (C) the information included on
pages [89-90] of the Prospectus under the heading "Description of the
Offshore Bonds - Currency Swap Provider". Notwithstanding the provisions of
this subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Offshore Bonds underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required
21
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the AMS Parties and the Issuer Trustee under this
Section shall be in addition to any liability which the AMS Parties and the
Issuer Trustee may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Securities Act; and the obligations of the Underwriters
under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Trust Manager, to each
officer of the AMS Parties or the Issuer Trustee who has signed the
Registration Statement and to each person, if any, who controls the AMS
Parties or the Issuer Trustee within the meaning of the Securities Act.
8. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters default in
their obligations to purchase Offshore Bonds hereunder on the Closing Date
and the aggregate principal amount of Offshore Bonds that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed
10% of the total principal amount of Offshore Bonds that the Underwriters
are obligated to purchase on such Closing Date, the Representative may make
arrangements satisfactory to the Trust Manager for the purchase of such
Offshore Bonds by other persons, including any of the Underwriters, but if
no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offshore Bonds that such
defaulting Underwriters agreed but failed to purchase on such Closing Date.
If any Underwriter or Underwriters so default and the aggregate principal
amount of Offshore Bonds with respect to which such default or defaults
occur exceeds 10% of the total principal amount of Offshore Bonds that the
Underwriters are obligated to purchase on such Closing Date and
arrangements satisfactory to the Representative and the Trust Manager for
the purchase of such Offshore Bonds by other persons are not made within 36
hours after such default, this Agreement will terminate without liability
on the part of any non-defaulting Underwriter or the Trust Manager, except
as provided in Section 9. As used in this Agreement, the term "UNDERWRITER"
includes any person substituted for an Underwriter under this Section.
Nothing herein will relieve a defaulting Underwriter from liability for its
default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements
of the AMS Parties, the Issuer Trustee or their respective officers and of
the several Underwriters set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any
Underwriter, the AMS Parties, the Issuer Trustee or any of their respective
22
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Offshore Bonds. If this Agreement
is terminated pursuant to Section 8 or if for any reason the purchase of
the Offshore Bonds by the Underwriters is not consummated, the AMS Parties,
jointly and severally, shall remain responsible for the expenses to be paid
or reimbursed by it pursuant to Section 5 and the respective obligations of
the AMS Parties, the Issuer Trustee and the Underwriters pursuant to
Section 7 shall remain in effect, and if any Offshore Bonds have been
purchased hereunder the representations and warranties in Section 2 and all
obligations under Section 5 shall also remain in effect. If the purchase of
the Offshore Bonds by the Underwriters is not consummated for any reason
other than solely because of the termination of this Agreement pursuant to
Section 8 or the occurrence of any event specified in clause (iii), (iv) or
(v) of Section 6(b), the AMS Parties, jointly and severally, will reimburse
the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with
the offering of the Offshore Bonds.
10. SELLING RESTRICTIONS.
(a) No offering circular, prospectus or other disclosure document in
relation to any Offshore Bonds has been lodged with the Australian
Securities and Investments Commission or the Australian Stock Exchange
Limited. The Offshore Bonds may not, in connection with their initial
distribution, be offered or sold, directly or indirectly, in the
Commonwealth of Australia, its territories or possessions, or to any person
who is known (or should reasonably be known) by the Underwriter (without an
obligation on the Underwriter to make any inquiry) to be resident of the
Commonwealth of Australia. Each Underwriter severally (but not jointly)
represents and agrees that it:
(1) has not, directly or indirectly, offered for issue or sale
or invited applications for the issue of or for offers to
purchase nor has it sold, the Offshore Bonds;
(2) will not, directly or indirectly, offer for issue or sale or
invite applications for the issue of or for offers to purchase
nor will it sell the Offshore Bonds; and
(3) has not distributed and will not distribute any draft,
preliminary or definitive offering circular, or any advertisement
or other offering material,
in the Commonwealth of Australia, its territories or possessions
("AUSTRALIA") unless:
(1) the amount payable for the Offshore Bonds on acceptance of the
offer by each offeree or invitee is a minimum amount of A$500,000
(or its equivalent in another currency) (disregarding amounts, if
any, lent by the Issuer Trustee or other person offering the
Offshore Bonds or any associate of them) or the offer or
invitation is otherwise an offer or
23
invitation for which no disclosure is required to be made under
Part 6D.2 of the Corporations Act 2001 (Commonwealth of
Australia);
(2) the offer, invitation or distribution complies with all
applicable laws, regulations and directives in relation to the
offer, invitation or distribution and does not require any
document to be lodged with the Australian Securities and
Investments Commission; and
(3) the Offshore Bonds will not be acquired by an Offshore Associate
of the Issuer Trustee other than in the capacity of a dealer,
manager, or underwriter in relation to a placement of the
Offshore Bonds or in the capacity of a clearing house, custodian
funds manager or responsible entity of a registered scheme.
(b) Each Underwriter severally (but not jointly) agrees that, in
connection with the primary distribution of the Offshore Bonds, it will not
sell any Offshore Bonds to any person if, at the time of such sale, the
Underwriter knows, or has reasonable grounds to suspect that, as a result
of such sale, such Offshore Bonds or any interest in such Offshore Bonds
will be, or will later be acquired, directly or indirectly, by an Offshore
Associate of the Issuer Trustee other than one acting in the capacity of a
dealer, manager or underwriter in relation to the placement of the Offshore
Bonds or in the capacity of a clearing house, custodian, funds manager or
responsible entity of a registered scheme.
In this Section 10, an "OFFSHORE ASSOCIATE OF THE ISSUER TRUSTEE"
means an associate - within the meaning of section 128F of the Income Tax
Assessment Act - of the Issuer Trustee that is either a non-resident of
Australia that does not acquire the Offshore Bonds in carrying on a
business at or through a permanent establishment in Australia or,
alternatively, is a resident of Australia that acquires the Bonds in
carrying on a business at or through a permanent establishment outside
Australia.
(c) Each Underwriter agrees that it must offer the Offshore Bonds for
which it subscribes for sale within 30 days of the issue of those Offshore
Bonds. Such offer must only be by one of the following means (or a
combination thereof);
(1) as a result of negotiations being initiated by the Underwriter in
electronic form on Reuters or the electronic information system
made available to its subscribers by Bloomberg, L.P., specifying
in such offer the name of the issuer and the price at which the
Offshore Bonds are offered for sale; or
(2) by the Underwriter offering those Offshore Bonds for sale:
(A) to at least 10 persons, each of whom must be carrying on a
business of providing finance, or investing or dealing in
securities in the course of operating in the financial
markets and not known to be an
24
associate (within the meaning of section 128F of the Income
Tax Assessment Act) of any of the others;
(B) as a result of being accepted for listing on a stock
exchange where the Issuer Trustee has previously entered
into an agreement with the Underwriter in relation to the
placement of the Offshore Bonds requiring the Issuer Trustee
to seek such listing; or
(C) to at least 100 persons who it would be reasonable to regard
as either having acquired instruments similar to the
Offshore Bonds in the past or as likely to be interested in
acquiring the Offshore Bonds.
Each Underwriter will provide the Issuer Trustee (within five Business Days
of the offer of such Offshore Bonds by it) a written statement which sets
out the details of the relevant offer.
Each Underwriter (severally, not jointly) agrees to co-operate with
reasonable requests from the Issuer Trustee for information for the
purposes of assisting the Issuer Trustee to demonstrate that the public
offer test under section 128F of the Tax Act has been satisfied, provided
that no Underwriter shall be obliged to disclose the identity of the
purchaser of any Offshore Bond or any information from which such identity
might/would be capable of being ascertained, or any information the
disclosure of which would be contrary to or prohibited by any relevant law,
regulation or directive.
(d) Each Underwriter (severally and not jointly) acknowledges that no
representation is made by the Issuer Trustee or any AMS Party that any
action has been or will be taken in any jurisdiction outside the United
States by the Issuer Trustee or any Underwriter that would permit a public
offering of the Offshore Bonds, or possession or distribution of the
Prospectus or any other offering material, in any country or jurisdiction
where action for that purpose is required. Each Underwriter (severally and
not jointly) will comply with all applicable securities laws and
regulations in each jurisdiction in which it purchases, offers, sells or
delivers Offshore Bonds or has in its possession or distributes the
Prospectus or any other offering material, in all cases at its own expense.
(e) Each Underwriter (severally and not jointly) agrees that:
(i) it has only offered or sold and, prior to the expiry of
a period of six months from the Closing Date, will only
offer or sell any Offshore Bonds in or from the United
Kingdom: (a) to persons (i) whose ordinary activities
involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes
of their businesses; or (ii) to persons who it is
reasonable to expect will acquire, hold, manage or
dispose of investments (as principal or agent) for the
purposes of their businesses, except in circumstances
that do not constitute an offer to the public under the
Public Offers of Securities Regulations 1995 (as
amended);
25
(ii) it has complied and will comply with all applicable
provisions of the Financial Services and Markets Act 2000
("FSMA") with respect to anything done by it in relation
to the Offshore Bonds in, from or otherwise involving the
United Kingdom; and
(iii) in connection with the Offshore Bonds, it has only
communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the
meaning of section 21 of the FSMA) received by it in
connection with the issue or sale of any Offshore Bonds
in circumstances in which Section 21(1) of FSMA does not
apply to the Issuer Trustee.
(f) Each Underwriter (severally and not jointly) agrees that the sale
of the Offshore Bonds, by each Underwriter on behalf of the Issuer Trustee,
does not, and will not, form part of any public offer of such Offshore
Bonds in Spain, and each sale of Offshore Bonds will be an individual
transaction and has been or will be negotiated and/or agreed with the
relevant Underwriters in respect of the Offshore Bonds. Each Underwriter
(severally and not jointly) has not provided any investor in respect of the
Offshore Bonds, and will require each investor to acknowledge that it has
not received, any advertising or marketing material from the relevant
Underwriter regarding the Offshore Bonds other than the Prospectus. The
Underwriters (severally and not jointly) agree that the Offshore Bonds may
not be directly/indirectly sold, transferred or delivered in any manner, at
any time other than to institutional investors in Spain (defined under
Spanish Law as banks, saving banks and securities companies).
11. CERTAIN MATTERS RELATING TO THE ISSUER TRUSTEE.
The Issuer Trustee has no personal liability in relation to any of its
obligations under or arising out of this Agreement or any of the Basic
Documents entered into in its capacity as trustee of the Trust. In relation
to each such obligation, the liability of the Issuer Trustee is limited to
and does not extend beyond the Assets of the Trust as they stand at the
time at which the obligation is met or satisfied. The Issuer Trustee is not
liable to meet or satisfy any such obligation from its own assets (except
the Trustee's Indemnity) and each such obligation must be met or satisfied
from the Trust or the Trustee's Indemnity.
The preceding paragraph applies notwithstanding the fact that the
liabilities of the Issuer Trustee in its capacity as trustee of the Trust
may from time to time almost equal, equal, or exceed the value of the
Assets of the Trust at the relevant time.
The previous paragraphs of this Section 11 do not apply to the
liability of the Issuer Trustee in relation to any obligation which in any
Basic Document the Issuer Trustee expressly assumes in its personal
capacity.
26
It is acknowledged by the Issuer Trustee that the Assets of the Trust
at any time will include the amount of any compensation found by a Final
Judgment (or admitted by the Issuer Trustee) to be payable by the Issuer
Trustee to restore the Trust because of the failure by the Issuer Trustee
to exercise in relation Trust the degree of care, diligence and prudence
required of a trustee or because of some other neglect, default or breach
of duty by the Issuer Trustee having regard to the powers and duties
conferred on the Issuer Trustee by the Master Trust Deed, in either case
occurring before the time in question and causing loss to the Trust
quantified before the time in question.
For purposes of this Section 11, "Final Judgment" means a judgment of
a court of law in Australia against which there can be no appeal or in
relation to which the time to appeal has expired.
12. CONSENT TO JURISDICTION; APPOINTMENT OF AGENT TO ACCEPT SERVICE OF
PROCESS.
Each of the AMS Parties and the Issuer Trustee hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough
of Manhattan in The City of New York in any suit or proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
Each of the AMS Parties and the Issuer Trustee irrevocably appoints CT
Corporation, 111 Eighth Avenue, 13th Floor, New York, New York 10011, as
its authorized agent in the Borough of Manhattan in The City of New York
upon which process may be served in any such suit or proceeding, and agrees
that service of process upon such agent, and written notice of said service
to it by the person serving the same to the address provided in Section 16,
shall be deemed in every respect effective service of process upon it in
any such suit or proceeding. Each of the AMS Parties and the Issuer Trustee
further agrees to take any and all action as may be necessary to maintain
such designation and appointment of such agent in full force and effect for
so long as the Offshore Bonds remain outstanding.
The obligation of any of the AMS Parties or the Issuer Trustee in
respect of any sum due to any Underwriter shall, notwithstanding any
judgment in a currency other than United States dollars, not be discharged
until the first business day, following receipt by such Underwriter of any
sum adjudged to be so due in such other currency, on which (and only to the
extent that) such Underwriter may in accordance with normal banking
procedures purchase United States dollars with such other currency; if the
United States dollars so purchased are less than the sum originally due to
such Underwriter hereunder, each of the AMS Parties and the Issuer Trustee
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify such Underwriter against such loss.
13. FOREIGN TAXES. All payments to be made by the Issuer Trustee and any
AMS Party hereunder shall be made without withholding or deduction for or
on account of any present or future taxes, duties or governmental charges
whatsoever unless the Issuer Trustee or such AMS Party, as applicable, is
compelled by law to deduct or withhold such taxes, duties or charges. In
that event, the Issuer Trustee or such AMS Party, as applicable, shall pay
such additional amounts as may be necessary in order that the net
27
amounts received after such withholding or deduction shall equal the
amounts that would have been received if no withholding or deduction had
been made.
14. WAIVER OF IMMUNITIES. To the extent that any of the Issuer Trustee and
AMS Parties or any of their properties, assets or revenues may have or may
hereafter become entitled to, or have attributed to it, any right of
immunity, on the grounds of sovereignty or otherwise, from any legal
action, suit or proceeding, from the giving of any relief in any respect
thereof, from setoff or counterclaim, from the jurisdiction of any court,
from service of process, from attachment upon or prior to judgment, from
attachment in aid of execution of judgment, or from execution of judgment,
or other legal process or proceeding for the giving of any relief or for
the enforcement of any judgment, in any jurisdiction in which proceedings
may at any time be commenced, with respect to its obligations, liabilities
or any other matter under or arising out of or in connection this
Agreement, the Issuer Trustee and the AMS Parties, as applicable, hereby
irrevocably and unconditionally waives, and agrees not to plead or claim,
any such immunity and consents to such relief and enforcement.
15. JUDGMENT CURRENCY. If any judgment or order in any legal proceeding
against any of the Issuer Trustee and the AMS Parties is given or made for
any amount due hereunder and such judgment or order is expressed and paid
in a currency (the "JUDGMENT CURRENCY") other than United States dollars
and there is any variation as between (i) the rate of exchange (the
"JUDGMENT RATE") at which the United States dollar amount is converted into
Judgment Currency for the purpose of such judgment or order, and (ii) the
rate of exchange (the "MARKET RATE") at which the person to whom such
amounts is paid (the "PAYEE") is able to purchase United States dollars
with the amount of the Judgment Currency actually received by the holder,
then the difference, expressed in United States dollars, between such
amount calculated at the Judgment Rate and such amount calculated at the
Market Rate shall be indemnified (a) if negative by the Issuer Trustee and
the AMS Parties, as applicable, to the Payee and (b) if positive by the
Payee to the Issuer Trustee and the AMS Parties, as applicable. The
foregoing indemnity shall constitute a separate and independent obligation
of the Issuer Trustee, the Trust Manager and AMS or the Payee, as the case
may be, and shall continue in full force and effect notwithstanding any
such judgment or order as aforesaid. The term "RATE OR EXCHANGE" shall
include any premiums and costs of exchange payable in connection with the
purchase of, or conversion into, the relevant currency.
Level 4
35 Clarence Street
SYDNEY NSW 2000
AUSTRALIA
By fax: (02) 8295 8675
Attention: Senior Manager, Securitisation Trusts
16. NOTICES. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the
28
Representative at 60 Wall Street, New York, NY 10005, Attention: Nita
Cherry; if sent to the Trust Manager will be mailed, delivered or
telegraphed and confirmed to the Trust Manager at c/o Level 6, 12
Castlereagh Street, Sydney NSW 2000, Australia (Facsimile No. + 61 2 8295
8675), Attention: Financial Controller; if sent to the Issuer Trustee,
mailed, delivered or telegraphed and confirmed to the Issuer Trustee at
Level 4, 35 Clarence Street, Sydney, New South Wales 2000 (Facsimile No. +
61 2 8295 8675), Attention: Senior Manager, Securitisation Trusts; and if
sent to AMS, mailed, delivered or telegraphed and confirmed to AMS at Level
6, 12 Castlereagh Street, Sydney NSW 2000 (Facsimile No. + 61 2 9225 0864),
Attention: Manager, Operations; provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed
and confirmed to such Underwriter.
17. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no
other person will have any right or obligation hereunder.
18. REPRESENTATION OF UNDERWRITERS. The Representative will act for the
several Underwriters in connection with this financing, and any action
under this Agreement taken by the Representative will be binding upon all
the Underwriters.
19. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
20. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
29
If the foregoing is in accordance with the Representative's understanding
of our agreement, kindly sign and return the enclosed counterparts hereof,
whereupon it will become a binding agreement between the parties listed below in
accordance with its terms.
Very truly yours,
AUSTRALIAN SECURITISATION
MANAGEMENT PTY LIMITED
By:
-------------------------------------
Name:
Title:
PERMANENT CUSTODIANS LIMITED
By:
-------------------------------------
Name:
Title:
AUSTRALIAN MORTGAGE
SECURITIES LTD
By:
-------------------------------------
Name:
Title:
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the day
first above written.
DEUTSCHE BANK SECURITIES INC.
Acting on behalf of itself as the Representative
of the several Underwriters.
By:
--------------------------------------------
Name:
Title:
By:
--------------------------------------------
Name:
Title:
SCHEDULE I
[Enlarge/Download Table]
Principal Amount Principal Amount Principal Amount Principal Amount
of Class A-1(a) of Class A-1(b) of Class B-1(a) of Class B-1(b)
Bonds to Be Bonds to Be Bonds to Be Bonds to Be
Underwriter Purchased Purchased Purchased Purchased
----------- --------- --------- --------- ---------
Deutsche Bank Securities Inc. US$[_______] EURO[_______] US$[_______] EURO[_______]
ABN AMRO Incorporated US$[_______] EURO[_______] US$[_______] EURO[_______]
Total.................... US$[_______] EURO[_______] US$[_______] EURO[_______]
ARMS II GLOBAL FUND 3
Certificate pursuant to section 6(c) of the Underwriting Agreement
Date: January __, 2004
Deutsche Bank Securities Inc.
As Representative of the Underwriters
60 Wall Street
New York, NY 10005
I hereby certify that, to the best of my knowledge after reasonable
investigation:
(i) the representations and warranties of Permanent Custodians Limited, in its
capacity as trustee of the ARMS II Global Fund 3 (the "Issuer Trustee"), in
the Underwriting Agreement dated January __, 2004 among Deutsche Bank
Securities Inc., as representative ("Representative") of the Underwriters
listed in Schedule I to that agreement (the "Underwriters"), Australian
Securitisation Management Pty Limited, the Issuer Trustee and Australian
Mortgage Securities Ltd (the "Underwriting Agreement") are true and
correct; and
(ii) the Issuer Trustee has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under the Underwriting
Agreement.
By:
-------------------------------------
Name:
Title:
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘S-11/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 1/21/04 | | | | | | | None on these Dates |
| | 12/4/03 | | 2 |
| | 3/7/95 | | 1 |
| List all Filings |
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